State v. Ruthardt

• Decision Date: 21 February 1996
• Docket Number: No. 9405012402,9405012402
• Citation: 680 A.2d 349
• Court: Delaware Superior Court
• Parties: STATE of Delaware, v. Ronald RUTHARDT, Defendant. . Submitted:

Page 349

680 A.2d 349

STATE of Delaware, v. Ronald RUTHARDT, Defendant.

No. 9405012402.

Superior Court of Delaware,

New Castle County.

Submitted: Feb. 21, 1996.

Decided: March 21, 1996.

Scott Stein, Attorney General's Office, Wilmington, for State.

Kevin P. O'Neill, Heyden, Kania & O'Neill, Wilmington, for Ronald Ruthardt.

OPINION

CARPENTER, Judge.

Ronald Ruthardt was arrested on May 14, 1994, and charged with Driving While Under the Influence, 21 Del.C. § 4177, and various other motor vehicle violations. ¹ Before the Court is the State of Delaware's Motion in Limine to Admit Evidence Relating to the Horizontal Gaze Nystagmus Field Sobriety Test ("HGN"). The State requests the Court to admit HGN for the purpose of determining probable cause and as evidence of impairment and/or intoxication at trial. Because the State's Motion presents issues of first impression in Delaware, the Court has held extensive evidentiary hearings on the matter and has required full briefing from the parties prior to ruling on such issue. This is the Court's ruling granting the State's Motion for the purpose of determining probable cause to arrest and as corroborating evidence that the defendant was operating a vehicle while "under the influence" in violation of 21 Del.C. § 4177(a). ² This ruling is limited, however, by a finding that HGN testing is not admissible in any criminal prosecution to independently and conclusively establish that a defendant's blood alcohol content equalled or exceeded a specific concentration and is subject to the requirement that the State establish a proper foundation consistent with the opinion set forth below. ³

I. Facts

On May 14, 1994, Corporals French and Coyle of the Delaware State Police were conducting a security checkpoint for the LPGA Golf Tournament on Rockland Road near Route 141. Upon reaching the roadblock, the defendant, Ronald Ruthardt, operating a 1992 Chevrolet Camaro, failed to heed Corporal French's signal to stop his vehicle. Instead, he drove through the roadblock and proceeded on Rockland Road until pulling into the parking lot of the DuPont Country Club. Corporal French notified other officers in the area of the defendant's action, and thus, the defendant was confronted by officers as he exited his vehicle. Corporal French immediately responded to the parking lot and positively identified the defendant as the operator of the vehicle. Because of the presence of alcohol on defendant's breath, his bloodshot eyes and muddled speech, Corporal French requested the defendant to undergo a battery of field sobriety tests, which included the HGN test. ⁴

From the results of the field tests performed on the scene, Corporal French informed the defendant that he was under arrest for operating a motor vehicle while under the influence of alcohol. The defendant was taken into custody, transported to police headquarters and, subsequently, charged with Driving While Under the Influence in violation of 21 Del.C. § 4177, Driving During a Period of Suspension, 21 Del.C. § 2756, Failure to Provide Proof of Insurance, 21 Del.C. § 2118, Failure to Stop at the Command of a Police Officer, 21 Del.C. § 4103(b), No Passing Zone violation, 21 Del.C. § 4120, and Unregistered Motor Vehicle, 21 Del.C. § 2115.

Thereafter, the State filed a Motion In Limine seeking to admit evidence relating to the HGN field sobriety test for the purpose of establishing probable cause to arrest the defendant and as independent, direct evidence of his level of intoxication. The defendant countered the motion arguing that HGN evidence is prejudicial and not sufficiently reliable to satisfy the standard for admitting scientific evidence under the Delaware Rules of Evidence. In order to give the parties the opportunity to present expert testimony on the principles and use of the HGN test, the Court held a series of lengthy evidentiary hearings on December 19, 1994, and April 3-5, 1995. Six witnesses testified on behalf of the State. They were: Dr. Constantine Forkiotis, a behavioral optometrist; Detective Mark Hawk and Corporal Linda French of the Delaware State Police, the training and the arresting officer, respectively; Sergeant Thomas Page of the Los Angeles Police Department, an expert in the field of alcohol and drug recognition; Dr. Marcilline Burns, a research psychologist specializing in the effect of alcohol on behavior; and Dr. Grant Lui, a neuro-ophthalmologist. The defendant offered the testimony of Dr. Spurgeon Cole, a psychologist specializing in the area of test evaluation and administration. Subsequently, after the hearing, this issue was briefed by the parties. Upon reviewing the briefs, the Court submitted specific questions to the parties, to which they filed written responses.

II. Horizontal Gaze Nystagmus Test

Nystagmus is a well-known physiological phenomenon defined as "a rapid involuntary oscillation of the eyeballs." Webster's Ninth Collegiate Dictionary 813 (1989); see 2 Donald H. Nichols, Drinking/Driving Litigation § 26:01, at 1 (1990). Horizontal gaze nystagmus ("HGN") is the inability of the eyes to maintain visual fixation as they are turned horizontally side to side. Goldberg, Behavioral and Physiological Effects of Alcohol on Man, 28 Psychosomatic Med. 570, 593 (1966) [hereinafter Behavioral Man ]; The Merck Manual of Diagnosis and Therapy 1980 (14th ed. 1982) [hereinafter Merck Manual ]. This phenomenon became of significant interest to the law enforcement community as research studies found that HGN, or the oscillation of the eyeball, may be aggravated by central nervous system depressants such as alcohol or barbiturates. See, e.g., Gregory W. Good & Arol R. Ausburger, Use of Horizontal Gaze Nystagmus as a Part of Roadside Sobriety Testing, 63 Am.J. Optometry & Physiological Optics 467 (1986).

In 1977, the National Highway Traffic Safety Association ("NHTSA") conducted a study to evaluate the effectiveness of the HGN test along with five other roadside field sobriety tests in order to determine the three best tests for detecting alcohol impairment. NHTSA DOT HS-802-424, Psychophysical Tests for DWI Arrests (1977) ("1977 NHTSA Study "). At the evidentiary hearing before this Court, Dr. Burns, Director of the Southern California Research Institute and one of the researchers involved in the 1977 NHTSA study, testified that the results indicated that the walk-and-turn test, the one-leg stand test and the HGN test were the most highly effective methods for detecting alcohol-impairment and, out of these three field sobriety tests, HGN was the most sensitive for assessing whether a driver is legally intoxicated. Subsequently, in 1984, the NHTSA published a training manual for the purpose of teaching police officers the proper execution of the walk-and-turn, one-leg stand and HGN test. NHTSA, DOT-HS-806-512, Improved Sobriety Testing (1984) (reprinted in 2 Donald H. Nichols, Drinking/Driving Litigation, ch. 26, app. A (1985)) ("NHTSA Training Manual "). The substance of this manual is utilized by the Delaware State Police in its DUI training of officers. ⁵

As Corporal French and Detective Mark Hawk testified at the hearing, the NHTSA's guidelines direct the officer administering the HGN test to stand directly in front of the driver and require the individual to stand at attention, feet together and arms to the side. NHTSA Training Manual, supra, at 3-4. To ensure accuracy, the NHTSA manual further instructs the officer to perform the test outside of the automobile in a well-lit area. Id. If the driver wears glasses, they should be removed to ensure proper observation by the officer; and if the suspect wears hard contacts lenses the test should not be administered because the lenses may dislodge and interfere with eye movement. Id. Next, the officer is to instruct the driver to focus the eyes on an object (in this case, a pen) held fifteen inches from the driver at eye level. Id. The officer then gradually moves the object, or stimulus, horizontally out of the driver's field of vision towards the ear and watches the driver's eyeball to detect involuntary jerking--or nystagmus. Id. The police officer utilizes the procedure as an indication of whether the driver is under the influence of alcohol by observing: (1) the inability of each eye to follow movement smoothly ("lack of smooth pursuit"), (2) conspicuous nystagmus, or jerking, at maximum deviation and (3) the onset of nystagmus prior to reaching a 45 degree angle in relation to the center point. Id. See State v. Witte, 251 Kan. 313, 836 P.2d 1110, 1112 (1992) (describing HGN testing procedures as designed by NHTSA). The test involves three distinct steps, or horizontal passes, which are performed for each eye. Thus, the police officer notes six testing points in order to determine the pass/fail results. For each occurrence of nystagmus observed by the police officer, the driver receives a point for a maximum score of six; a score of four or more provides an indication that the individual is intoxicated and is considered a failure of the test. ⁶ See NHTSA Training Manual, supra, at 3-4 (discussing in-depth administration and scoring of the HGN test); see also 2 Nichols, Drinking/Driving Litigation § 26:01, p. 159 (1992 Supp.).

Having discussed the characteristics of the test itself, the Court now turns to the critical questions presented sub judice: (a) whether the HGN evidence may be admitted for the purpose of establishing probable cause; (b) whether HGN evidence is "scientific" evidence and, if so, (c) whether HGN evidence is reasonably reliable on the issue of alcohol impairment so as to satisfy the standard for admission of scientific evidence pursuant to the Delaware Rules of Evidence.

III. HGN and Probable Cause

It is a generally accepted principle in Delaware, as well as throughout the country, that while probable cause may not rest on mere suspicion, it need not rise to the level necessary to sustain a conviction, nor rest on...